When Fighting Crime Means Enticing Crime

By SARAH KERSHAW

Published: September 2, 2007

TOE-TAPPING can be murky territory.

According to the police report on Senator Larry E. Craig of Idaho, it was the senator who tapped his toes, fidgeted with his fingers and edged his foot toward the man in the next stall while at a Minneapolis airport bathroom in June.

He was using a well-known signal to invite gay sex and unaware of a sting operation that was targeting lewd behavior in the restroom, the report said -- a sting that has led to the arrests of dozens of others.

Prosecutions built on sting operations can raise philosophical and legal questions, particularly cases built in areas like bathrooms and bushes and involving potential illegal behavior, or what the law calls a defendant's ''predisposition'' to commit a crime.

Suppose, for example, the undercover officer had been the one tapping his toes? What if he had been whistling, cajoling, peeping, peering, leering and barking out an offer to rendezvous with the senator? This could qualify as entrapment, but the defense would have to prove that the government was not catching a criminal but creating a crime.

The term entrapment has been used loosely outside the legal world to describe, often with outrage, many sting operations, including the one that snared Mr. Craig. Such stings are typically intended to crack down on prostitution, drug dealing and sex in public.

The police say the goal of any vice squad is to protect the public -- perhaps a young boy using that Minneapolis bathroom -- and also the suspects, who are easy prey for extortion, assault, even murder, and unlikely to report crimes against themselves.

And the standard for the legal defense of entrapment is high. Even if the undercover officer had solicited and enticed Mr. Craig, who pleaded guilty to a lesser charge of disorderly conduct but last week insisted he was innocent, an entrapment defense would have been a very cloudy matter, legal experts said. (In an audio tape made after the arrest, Mr. Craig had raised that possibility to the officer: ''You're out to enforce the law,'' he said. ''But you shouldn't be out to entrap people, either.'')

In entrapment cases, the evidence may need to be collected from a state of mind: When did the suspect decide to commit the crime? When the police offered him the opportunity? Was it because an opportunity was presented, or was he planning on illegal activity anyway?

In New York, the City Council is considering an anti-voyeurism bill, expanding a state law that bans peeping with cameras also to ban peeping in person; say, someone looking up a woman's skirt while standing in a subway stairwell.

Talk about murky: when is a leer too long and an ogle illegal? What is the legal standard on staring?

The United States is one of the few countries where entrapment is a legal defense. In a significant case on entrapment, Jacobson v. United States, in 1992, the Supreme Court overturned the conviction of a Nebraska farmer arrested for buying child pornography sent to him in the mail by undercover agents.

When he was arrested, the farmer, whom inspectors had targeted for two years before the arrest with dozens of mailings inviting him to buy pornography, had none in his house, other than the two magazines he had bought from the undercover inspectors, the ruling said.